Pacific Waste Management P/L v Crowley & Crowley No. Scgrg-00-381

PACIFIC WASTE MANAGEMENT PTY LTD v DARRELL FRANCIS CROWLEY & JUDITH CROWLEY
[2000] SASC 162

Miscellaneous Appeal (Ex tempore)

BLEBY J. This is a purported appeal by leave of a single judge of the District Court to this Court against an order of the District Court allegedly made on 7 April 2000.
The order said to be appealed against, as recited in the notice of appeal, is “That the order which I (Judge Bishop) made on 28 March 2000, as varied by Judge Sulan on 29 March 2000, remain in force”.
The respondents operate a small waste collection and disposal business called Encounter Coast Waste. Their area of operation is around the Fleurieu Peninsula in South Australia.
The appellant operates a national waste collection and disposal business. Through a business agent, there had been discussions about the possibility of the appellant acquiring the business of the respondents. Those discussions were inconclusive.
The respondents allege that, to enable the appellant to assess the business, it was provided with confidential information relating to the business, including a client list and copies of the accounts of the business, copies of pricing lists, and also a depreciation schedule relating to the plant and equipment. They exhibited a copy of their client list to the affidavit in support of the application for an injunction.
They also allege that, on or about 28 January 2000, they received a copy of a signed confidentiality deed provided to them by the business agent and executed by or on behalf of the appellant, and a copy of the deed was also exhibited to their affidavit.
The basis of the respondents’ claim for the interim injunction was that the appellant had misused the confidential information contrary to the terms of the deed and was approaching the respondents’ customers to entice them to leave the respondents, and to enter into contracts with the appellant.
Judge Bishop of the District Court, on 28 March 2000, made an interlocutory order by way of ex parte interim injunction operative until 14 April 2000 at 2.15. The injunction restrained the appellant, its representatives, agents, servants and workmen, from directly and/or indirectly contacting or providing any waste removal service to any client of the respondents’ business described on the client list which was exhibited to the affidavit. There were one or two exceptions to the order.
On 29 March 2000, Judge Sulan varied that order, but not in any terms which matter for the purpose of this appeal, or with respect to the duration of the order.
By notice of further directions dated 30 March 2000, the appellant sought further directions, among other things, that the order of Judge Bishop be set aside, or varied. That came before Judge Bishop on 6 April 2000. Further affidavits had been filed by both parties.
The basis of the application, as it was argued before Judge Bishop on that day, was that the respondents had failed to make true and full disclosure of all relevant circumstances in their affidavits in support of the ex parte injunction, and that the injunction must, therefore, be discharged. In other words, it was alleged there had been a misstatement, or omission, or non-disclosure, of material facts, either deliberate or by failure to inquire. See, for example, Thomas A. Edison Ltd v Bullock (1913) 15 CLR 679 per Isaacs at 681, and Gilfillan v Gilfillan (1973) 6 SASR 330.
However, suppression of facts is not necessarily established merely by failure to inquire. The authority for that is Gilfillan at 335, although there is some United Kingdom authority which suggests that, in some cases, proper inquiry must be made, but this would appear to depend on the circumstances: refer to Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350. But there appears to be some element of discretion as to whether or not the order should be set aside.
One is somewhat hamstrung by the failure of Judge Bishop to provide reasons for what he did on 6 and 7 April, for what he did, as this appeal indicates, has given rise to some confusion about the effect of what he did, or what he thought he may have been doing.
A review of the transcript of the proceedings before him, however, indicates that the argument was as to whether or not there had been proper disclosure by the respondents on the hearing of the interim injunction application.
It seems to me that Judge Bishop, on 6 April, at the conclusion of the argument, was satisfied on the material before him that there was a factual dispute as to whether or not the respondents had made full disclosure, or had made the necessary inquiries. On that day, Judge Bishop intimated that he was not inclined to set aside the order, but it is quite clear that he made no order on that day.
Mr McCarthy, who was then appearing for the respondents, towards the end of the hearing, said, “I would seek you to confirm your order now and that the injunction stand until further order, then at least my friend has an order to appeal from [I might add, there had been earlier reference to an application for leave to appeal], and we will not be in a situation where the injunction may expire because we simply pass a date”. His Honour said:
“I don't follow you there. I am simply adjourning this hearing until tomorrow afternoon so you can consider your positions in relation to the intimation that I have given as to the order which I will make tomorrow; that is, no rescission.”
His Honour had previously said that he would give the parties 24 hours to reflect on his intimation, and shortly before the passage to which I have just referred, he was asked by Mr Milazzo, who was then appearing for the appellant:
“MR MILAZZO: Before your Honour adjourns the court, I am instructed to seek leave to appeal from your Honour’s order or decision not to discharge the injunction.
HIS HONOUR: Yes. I haven't had the chance to give my reasons, but certainly you have got that leave.
MR MILAZZO: Thank you.
MR MCCARTHY: Can I make submissions? I anticipate I will make it 3 o'clock tomorrow; that is, if my friend is serious about appealing, then what is the point of having a hearing until we know whether or not the appeal is going to be pursued?
HIS HONOUR: Yes, it is tomorrow that I have given an intimation to hear it and I will make the formal order tomorrow.”
The matter came before Judge Bishop on 7 April. After some discussion about what was proposed that he should do, his Honour said:
“Having yesterday heard Mr Milazzo concerning the affidavits which have here been presented, and having considered the legal principles to which he has referred, I am not persuaded that the interim injunction which was granted by me herein on 28 March was obtained on either a misstatement or non-statement of material facts. Upon the affidavits presented, clearly, there is a factual dispute to be resolved. That resolution, in my view, is best facilitated by directing that the matter be listed for urgent hearing and determination before a judge of this court upon oral evidence of the deponents to those and any further affidavits which may be filed and served herein, for which purpose the matter is referred to the registrar. Meanwhile, the order which I made on 28 March as varied by Judge Sulan on 29 March will remain in force.”
The factual dispute to which his Honour referred appears to me, upon a reading of the transcript, to concern the very area that he was considering, namely, whether or not there had been a proper disclosure by the respondents on the hearing of the application for the interim injunction.
The fiat of the order which appears on the file of the court, and as signed by the judge, reads as follows:
“The order made by me on 28/3/2000, as varied by Judge Sulan on 29/3/2000, remains in force.
It is directed that the application be listed for urgent hearing and determination before a judge of this court upon oral evidence of the deponents to the affidavits, and any further affidavits which may be filed and served herein for which purpose the matter is referred to the registrar. The question of costs is to be reserved.”
I can only conclude that the application referred to in that order is the application of the appellant for the discharge of the interim injunction. That order, as recorded on the court file, suggests that his Honour was not determining the application, but was giving further directions as to its disposal and was making a declaratory observation that, in the meantime, of course, the interim injunction, by its own terms, would continue in force for the time being.
It seems to me reasonably clear from what took place that the purpose of the further hearing his Honour was proposing was to resolve whether the interim injunction should continue, and that that hearing would include issues relating to the candour of the respondents in the material that they placed before Judge Bishop on the hearing of the interim injunction application.
In other words, the propriety of the interim injunction, and of the respondents’ conduct in obtaining it, is still a live issue. I am told, and it appears from the file, that time has been allocated before a judge of the District Court commencing next Monday, 5 June, for that hearing to take place. In other words, the appellant’s application to discharge the interim injunction has not been fully disposed of.
One may well question, as indeed I do, why an application to discharge an interim injunction should be so delayed in the hearing, given that the injunction was first made some two months ago, and that Judge Bishop directed that the hearing upon the cross-examination of the deponents should be for urgent determination. However, that appears to be the case, but in my view it is quite unacceptable that the question whether or not an ex parte injunction should continue, particularly one in the wide terms that this one is, should remain unresolved for two months after the application is first made to discharge it.
Section 43(1) of the District Court Act provides:
“(1)....... A party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action.
(2) The appeal lies -
(a)....
(b)...... in the case of an interlocutory judgment given by a judge, to the Supreme Court constituted of a single Judge.”
“Judgment” is defined in s 3 of the Act as meaning “a judgment, order or decision and includes an interlocutory judgment or order”. In my opinion no interlocutory judgment or order dealing with the appellant's application has been given or made. There have been merely further directions given for its disposal. On that basis, the purported appeal is incompetent.
If I am wrong in that, however, in my view the appeal is incompetent for another reason. Rule 96A.02 of the Supreme Court Rules provides:
“(1)....... Unless a judge of the District Court has certified that the proposed appeal involves:
(a)......... A point of law of difficulty or importance which justifies it being reviewed on an interlocutory appeal; or
(b)A point of sufficient importance in the proceedings to warrant it being reviewed on interlocutory appeal without waiting for the final judgment in the action,
any appeal against an interlocutory judgment under s 43(2)(b)of the Act, [i.e. the District Court Act] is subject to leave being obtained from the Court.”
In my opinion Judge Bishop was misguided in acceding to the appellant’s request on 6 April to grant it leave to appeal. At that stage no order had been made by the Judge. But if there had been, and if one relates it to what then took place on 7 April, it was not the Judge’s function to grant leave to appeal. His only function was to address his mind to the matters which r 96A.02 requires him to address, and he plainly does not appear to have done that. On that basis it would seem to me that the appeal is incompetent.
The question then arises whether I should grant leave to appeal. I have already expressed the view that there is no appealable order. Quite apart from that, I am told that the matter is listed for hearing in the District Court, upon the resumption, effectively, of the hearing before Judge Bishop on 7 April, next Monday, 5 June, to deal with the very question which Judge Bishop directed should be dealt with urgently. No judge of the District Court has yet made any finding as to whether the respondents had failed to make true and full disclosure in their application for an ex parte injunction. In my opinion that can and should be resolved in the forthcoming hearing before the District Court.
But it seems to me that r 96A.02 gives a reasonably clear guide as to the sort of matters that are relevant in cases such as this to the granting of leave. In my opinion those criteria are not met on this application.
In the first place I am not satisfied that a point of law of difficulty or importance arises which justifies the matter being reviewed on an interlocutory appeal. I cannot be satisfied that his Honour has misunderstood the law. As I pointed out, the question does admit of the exercise of some discretion, but, in any event, the question does not appear to have been fully resolved, and on what the judge has done so far there is no indication that he has yet misdirected himself, let alone on a point of difficulty or importance.
So far as para (b) of sub-rule (1) is concerned, there is no doubt that the injunction in its present form is in wide terms, and I can understand that that is of importance to one of the parties, if not both. But in my opinion that in itself is insufficient to warrant the grant of leave when no application has yet been made or heard in an attempt to confine the extent of the order if, indeed, it is considered to be in terms that are too wide.
I cannot be satisfied that a point of sufficient importance in the proceedings to warrant it being reviewed on an interlocutory appeal without waiting for the final judgment in the action arises. Even if there were an appealable order, therefore, I would for those reasons refuse leave to appeal.

[After hearing argument on the respondents’ application for costs his Honour said:]

Mr McCarthy for the respondents seeks an order for the costs of the appeal. When the question of granting leave to appeal was first raised by the present appellant before Judge Bishop, the respondents did not seek to correct Judge Bishop’s misconception that he was able to grant leave to appeal, and when the matter came before Judge Kelly as a Master of this Court on an application for an expedited hearing of this appeal, the respondents made no mention of any question of the competency of the appeal. The question of competency on one of the grounds I have discussed was raised in the respondent’s outline of argument. The other ground on which I have held that the matter was incompetent was a matter that I raised at the outset of the hearing of the appeal.
In all those circumstances I consider it inappropriate to make any order for costs, and I decline to do so.

[2000] SASC 162

2 June 2000